It's the first time I can ever remember on a contested vote where both the two Democratic Senators from my current bluer than blue state voted the same (nay) as the two Republican Senators from my former redder than red state. Strange bedfellows in interesting times.
That reminds me of Wellington's response under similar circumstances.
A former lover tried to blackmail Wellington. His response was 'Publish and be damned.' It was published to the delight of many. But he still went on to become Prime Minister.
Reminds me of when the KGB and the CIA tried to use knowledge of the sexual exploits of Indonesia's president Sukarno to blackmail him. Instead of falling in line, he told them to release what they had so his countrymen could be impressed by his sexual prowess. The KGB went as far as having a group of their agents pose as flight attendants to engage him in an orgy, which they secretly filmed. When confronted with the film, he asked if KGB for extra copies for him to take home.
I obviously can't guess your age, but I'm gonna wager you weren't around much prior to 9/11. The world was getting on quite well without massive surveillance creep, and none of the stuff FISA has done in the last 23 years would have stopped it. The authorities already had all the info they needed back then and just didn't act on it.
FISA has been in existence since 1978. It did not prevent 9/11, so honestly your comment undersells how worthless the program has been in light of the constitutional freedoms we willingly cede in reauthorizing it. The fact is though it remains law and the officials we elected feel the value is worth it. I hope its being done solely based on the benefits it provides us as a whole and is not being used for self-serving purposes
People just toss comments like this around as though they were facts when in fact it’s completely paranoid made up q-anon level nonsense.
These laws work a very specific way and have very specific controls in place to prevent shit like you describe from happening which you could go and read up on if you wanted to but it’s much easier to fear monger amongst one another because it plays to your ego that somebody who is important enough to be under surveillance by an intelligence agency.
You could easily look at things like the Snowden leaks to see how well such controls end up working out. My favorite was NSA agents collecting and sharing sexual content. [1] The reason that's my favorite is not because it's the most extreme example of abuse - it's not, not by a longshot. The reason is that it really demonstrates that 'government' isn't some abstract or holistic entity. It's just a group of people, like you and I -- with the exact same vices, egos, weaknesses, and so on.
And of course this applies not only to the NSA spooks, but all the way up. You shouldn't be any more comfortable letting 'the government' spy on you, than you would be letting me spy on you. If you want another example along the same lines, spooks spying on their love interests is so common that there's a slang term for it - LOVEINT [2]. Basically, don't grant people power over other people unless it's really just completely and absolutely necessary, because it will be abused. So the benefit needs to substantially outweigh the inevitable abuses. And in this case, that obviously doesn't hold.
"Completely paranoid made up q-anon level nonsense" from the New York Times, The Guardian, Washington Post, Associated Press, and many others? I think not.
It's a secret court making secret law. This is, by definition, both unaccountable and impossible to conclude is not being used to cover up massive abuse, because whatever is happening is being concealed from the voters.
People dislike parts of the original 1978 bill that contunued.
I take issue with this bit: FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.
When combined by foreign agents including US citizens, it’s troubling.
Agree with the sentiment, but spying capabilities have been abused before FISA, just ask Martin Luther King Jr. So I don't think things were particularly fine before 9/11 either. It's just that technological advancements have made abuse on a mass scale possible for the first time in human history. AFAICT surveillance used to be much more targeted and labor intensive. That all changed after 9/11.
I didn't downvote you, btw (I upvoted you). I think MLK Jr's problems with the government weren't traditional spying, they were more harassment of government employees acting on their own because they were bigots. The organized government actions that did happen, IIRC, were in places were the local government was highly corrupt and infiltrated by the KKK.
> Are you aware the alternative is less oversight?
Yes, I am. That is in fact what I want.
> FISA protects Americans
No, it does not. At this time, the greatest threat to me (and other Americans) is in fact the glowies who want to use this sort of law to violate our civil liberties.
The alternative is requiring a warrant, which means following the Constitution. Due process doesn’t disappear because you want it to. Even if someone is supposedly a terrorist or criminal.
If you’re hoping the Supreme Court, and in particular this Supreme Court, is going to agree that the Constitution requires the executive branch get a warrant before spying on cross-border communication with a non-citizen, you’re going to be disappointed.
FISA is Congress exercising the only authority it has here, which is oversight & regulation. You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.
It's baffling to many people how FISA is even a thing. To a layperson, the Fourth Amendment leaves no room for a rubber stamp court authorizing mass surveillance. And no one except politicians and bureaucrats are buying the argument that this is somehow targeted surveillance.
Also, free nations should have higher standards than "Not a citizen? Too bad, anything goes."
This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free.
Congress can regulate the process that must be followed, the documentation that must be made, even require judicial review at the program level to ensure it doesn’t also record traffic that is Constitutionally protected. That’s what FISA is.
But it can’t ban that tapping, nor can it require the executive to get a warrant for a particular otherwise Constitutional intercept from an Article 3 court.
Where do I even start? Let's first reiterate that even when it's technically legal to screw over non-citizens, it doesn't make it right. That's not the standard expected of a free nation.
But let's ignore that for a moment and move on to the next point. Your example is still hoovering up communications from citizens who are supposed to be protected by due process of law. En masse. How does this not run afoul of the law?
The problem is compounded by the fact that the internet blurs geographical borders. Wholly domestic communications can and does end up crossing borders. Also, I'd bet a large part of our communications aren't even between people. The majority of the traffic likely are sent to or from computer programs. They happen without most people even realizing it, but contains highly personal information. The simple telegraph analogy doesn't translate well to the internet.
What's more, there's currently no meaningful system in place to prevent abuse. And no, a rubber stamp court authorizing dragnet surveillance isn't it.
OK, you want FISA to be stricter. But way up thread, someone made the point that it’s FISA itself that puts any meaningful balancing constraints at all on the Constitutional power of the executive. This includes the FISA court—made up of real, lifetime-tenured federal judges of the same robes you would like approving warrants—that is there by law to be watching out for just your parade of horribles.
The poster was roundly criticized for being correct.
No, FISA should not be a thing. Wiretap warrants should be reasonably scoped and acquired on an individual basis. There shouldn't be a secret court issuing do-whatever-you-want warrants.
To get that you have two choices: Do your best to persuade your fellow citizens to elect a President who will choose to forego this part of his Constitutional powers—or get a Constitutional amendment passed.
What I keep trying to explain is that this FISA vote can’t address your concerns one way or the other. If you disagree, I wish you’d explain how.
That's actually a great point. After the Snowden revelations, politicians justified some of the surveillance programs by claiming they were only looking at the metadata, not the content, as if that made any difference. So that's one of the excuses they use to create the appearance of legality.
> This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free.
That's not correct at all. It would only fall under federal overview if it's commercial (Article 1 section 8 clause 3 of the constitution gives congress the right to regulate commerce with foreign nations).
The Feds don't just get to do anything they want by default. All powers that aren't specifically given to the feds are defaulted to either the states or the people.
It's dumb, but Wickard v. Filburn makes basically anything involving physical goods "commerce". I'm sure there's a ruling somewhere that says something like: people entering the country subtly alter the restaurant market (not really any dumber than the Wickard v. Filburn rationale), and therefore the feds have a right to search everything.
I think it would be a lot harder to do that with speech though. Maybe you could argue that the telegraph line itself impacts international copper markets or something, but there are non-tangible based communication methods.
I don't understand the argument that it couldn't require a warrant. The argument is simply that the executive branch has a constitutional right to wiretap without a warrant, unless the the constitution forbids it?
There is some judicial oversight in the FISA court of course. What's the argument for why congress can legislate that, but not a more typical warrant?
For the same reason Congress can’t require the President to get the approval of the Supreme Court before he vetoes a bill: Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.
The FISA court exists to ensure that the executive is not operating outside his Constitutional authority, not as a gatekeeper for use of that authority at all in any instance.
> Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.
This is not true. The constitution explicitly reserves the power to declare war or enact treaties to Congress. Neither the military nor federal law enforcement can spend a single dime, or even exist, without Congressional approval. If the budget allocates no money to mass surveillance, no money is available to conduct mass surveillance.
That interpretation of the constitutional grant of foreign affairs and defense to the executive forbididng requiring a warrant is not obvious to me.
Do you have any case law to cite for this, or it's just your favored argument that you'd hope a court would agree with? You are talking about it like it's settled law. Cites?
Also, note that the cases you are talking about to which the law applies have someone in the USA involved in the wiretapped conversation as well. It wouldn't shock me if the courts -- although probably not the current supreme court, but you never know -- simply said it required a warrant constitutionally at some point in the future. It's certainly not obvious that you can wiretap an American without a warrant as long as they are talking to someone overseas.
And what exactly stops them from doing that, as a condition of how they spend the money? You could certainly have budget allocation for "surveillance conducted pursuant to a warrant" that prevents the money from being wasted on useless surveillance of innocent people.
The Constitution. What you’re saying is no different from Congress declaring war and funding the army, but with the proviso they must clear all battles with a Federal judge before they’re begun.
Or funding the Department of Justice, but with the proviso that any nominee for Attorney General must be over age 60.
Requiring battles to be approved by a judge has obvious practical problems, because they often happen in remote locations at unpredictable times, but Congress can pass all kinds of dumb requirements if they want to. That doesn't mean it's unconstitutional.
You're proposing an alternative where the executive gets to decide how money is spent. As if mass surveillance, which is a waste of money, has to be funded in order to fund ordinary investigations.
The executive is the weakest branch. It has almost no powers of its own, and shouldn't. It's checks and balances. For something to happen, the executive has to want to do it and Congress has to fund it. Not one or the other; both.
No, it really is unconstitutional for Congress to encroach on the enumerated powers of the executive. Just look at the recent SCOTUS cases around the setup of the Consumer Financial Protection Bureau to understand how consequential this constraint is.
> Just look at the recent SCOTUS cases around the setup of the Consumer Financial Protection Bureau to understand how consequential this constraint is.
Isn't this about the opposite issue, whether Congress can delegate control over funding to the executive? They were trying to get the executive to do the job of Congress and control the CFPB's funding.
The Constitution has already been shat on in all manner of ways to the point where it's not recognizable anymore. If we continue doing so anyway, we might at least do that to the citizens' benefit.
> You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.
Congress can't pass a law violating the Fourth Amendment. They can certainly pass a law constraining the executive from doing something that is otherwise constitutional, if the courts are reading the Fourth Amendment too narrowly.
They could also straightforwardly require the FISA court to publish its opinions, or have the same cases heard in ordinary federal courts with public accountability for the decisions. There is nothing in the constitution requiring secret courts.
I used to work for several of the US intel agencies. I can say with great confidence that we never have acted gainfully on preventing a major event using intel and we never will. The catalyst for acting boldly to prevent or defend a major event is much mor political than informational. No intel will ever play a big role in deciding whether a country lives or dies.
But we most certainly WILL abuse individual civil rights my abusing that intel. THAT has been confirmed in history again and again.
> The catalyst for acting boldly to prevent or defend a major event is much mor political than informational.
Could you explain what you mean by this? On a tangential note, have you considered talking/explaining this with politicians/academics studying this field? Or is it more of something that's already known to those familiar with the field?
The most relevant example I know is the Zimmerman telegram in 1917 which British intelligence decrypted and passed along to Pres Wilson. It detailed plans Germany had made to invade the US with Mexico's help. Wilson released it to newspapers in March as support for his decision to declare war on Germany in April. However the primary justification for war wasn't the telegram, but the public decision by Bismark to fully resume uboat attacks on merchant ships in the Atlantic.
So even as damning and revealing as the Zimmerman telegram was, ultimately it was Germany's bold resumption of the torpedoing of US oceangoing traffic that catalyzed US public opinion into ending 3 years of American neutrality and joining the fight in WWI. Thus even when intel is most damning, the role of intel will always be subservient to publicly motivating events like lost lives, as in the much ballyhooed sinking of the Lusitania 2 years before (1915).
Wikipedia has a couple of outstanding articles on the topic:
We also had drug trafficking when the US constitution was originally written[0], and the founders of the US still gave us a constitutional right to warrants for searches relating to it. I don't understand why sealed warrants aren't "good enough" for this purpose, perhaps you could open my mind a bit. Why do we need "warrantless" surveillance for drug trafficking now? Specifically, what's wrong with getting a sealed (secret for a period of time) warrant for surveillance from a normal court?
> In 1800, the British Levant Company purchases nearly half of all of the opium coming out of Smyrna, Turkey strictly for importation to Europe and the United States.
I can't down vote you harder. FISA hurts Americans by short circuiting any kind of protections citizens once had for due process.
We were fine before, and arguably it would've done little to change the events that caused the reaction that allowed it to be established in the first place.
Once enough votes are there to secure the bill, there's no reason for either party to "waste" any more votes of their members on something that can be so politically unpopular with large parts of their electorate.
People generally vote for the incumbent if they happen to claim the same party affiliation. They complain for 4-6 years, then when it comes to what box they tick on the ballot, all of that is out the window. The lure of an incumbent is that they might have acquired enough markers and enough seats on various committees to help the state, when it often seems the reality is that they've probably just acquired more lobbyist friends and more incentive to stay in office no matter what. Sure, they may be corrupt and incompetent, but they've got so much influence!
The joys of the "first past the post" election system. Take your choice of a shit sandwich, or a shit sandwich with pickles. Heaven forbid we actually update our voting system to break up the inevitable 2-party outcome.
Heaven might not forbid, but the two ruling parties certainly do. Breaking out of the status quo would crush their cartel, end their monopoly. They don't want to do that. The cycle continues.
[1]https://www.senate.gov/legislative/LIS/roll_call_votes/vote1...
Unfortunately both my senators voted for it. I did call their offices Thursday to no avail.